In Open-Records Case, The State Supreme Court Rules In Favor Of IHSA, Against BGA

The BGA sought to require the organization that oversees high school sports in Illinois to comply with open records law. The justices rejected our arguments. But the court does note similar suits should require a case-by-case consideration.

The Illinois Supreme Court on Thursday rejected arguments by the Better Government Association that the non-profit that oversees high school sports in Illinois should be treated like a public body and be forced to open up its financial records.

The ruling siding with the Illinois High School Association was unanimous. All seven justices on the court agreed the IHSA did not have to comply with Illinois open records law because its operations were not funded by tax dollars and public schools it serves join the organization voluntarily.

At the same time, however, the justices signaled their ruling may not have blanket application to other non-profits with functions that intersect or overlap with government bodies. “Whether a private entity could be deemed a subsidiary body (subject to the Freedom of Information Act) requires a case-by-case consideration,” the court found.

Indeed, earlier this month the Illinois Appellate Court ruled in a case brought by the Chicago Tribune that a non-profit foundation was so closely associated with The College of DuPage that the group must release a federal subpoena the newspaper requested under the Freedom of Information Act.

The decision in the IHSA case comes nearly three years after the BGA first sought records of sponsorship and public relations contracts from the organization. In a prelude to an eventual court fight, the group refused to provide the records, arguing it was not subject to open-records law that generally requires such disclosures from public bodies.

The 19-page ruling by the court, issued two months after justices heard arguments in Springfield, agreed mostly with the IHSA that it wasn’t subject to the state’s open records laws because it didn’t fit the definition of being a subsidiary of government and wasn’t performing a government function.

The court said the IHSA is an independent legal entity, doesn’t receive direct public funding and isn’t doing the work of a government body just because most of its membership is made up of public schools.

“Membership by individual schools is not compulsory,” wrote the author of the opinion, Justice Mary Jane Theis. “Not all public schools in Illinois are members of the IHSA. They are free to join other athletic organizations in lieu of, or in addition to, the IHSA.”

Andy Shaw, the BGA’s president and chief executive officer, said he was disappointed in the ruling.

“The IHSA has the power to impact the lives of student athletes in many ways and we believe they should be subject to transparency,” Shaw said. “This may be an area that the General Assembly should address in the state’s Freedom of Information Act to ensure that loopholes like this are closed.”

He added that the BGA continues to pursue other legal cases to increase transparency throughout all levels of government in Illinois.

Despite ruling for IHSA in the one case, Theis stressed in her opinion that privatization of government functions has the potential to compromise transparency and that there was a need to remain vigilant against potential end-runs by public bodies.

“There is a risk of decreased accountability and transparency,” she wrote. “We agree that such an interpretation is consistent with the purpose of the FOIA, which is expressly based on a policy of full, complete disclosure regarding the affairs of government to promote accountability in government and an informed citizenry.”

“To that end, we agree…that governmental entities must not be permitted to avoid their disclosure obligations by contractually delegating their responsibility to a private entity.”